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Ever since Apple vs. Samsung got rolling, it’s been clear that something needs to give in the patent system. The more extreme voices are calling for abolishing them entirely, institutional voices see no reason to

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change, and anyone on the street who thinks about the billions of dollars spent arguing over who owns rounded corners can imagine that something isn’t working the way Thomas Jefferson intended.

The New York Times has a long piece on what the patent ecosystem means for today's tech industry, and the whole article is worth reading. I was especially struck by this figure from the middle of the piece:

In the smartphone industry alone, according to a Stanford University analysis, as much as $20 billion was spent on patent litigation and patent purchases in the last two years - an amount equal to eight Mars rover missions. Last year, for the first time, spending by Apple and Google on patent lawsuits and unusually big-dollar patent purchases exceeded spending on research and development of new products, according to public filings.

If patents are designed to protect and spur innovation, it’s hard to imagine that they’re doing that job when the biggest companies in the world are spending more money navigating a Byzantine system than actually developing new products. The piece focuses on one entrepreneur who was developing voice-recognition technology for use with Apple’s Siri before his business collapsed in the face of patent litigation.

One of the key issues revolves around how patents are approved – the first entity to file a successful patent owns the concept contained therein, and companies can keep resubmitting patents to different reviewers until an application squeaks through. The result is that attrition becomes a clear-cut method toward acquiring broad patents. There doesn’t appear to be any company innocent of this kind of action, but the spotlight is clearly on Apple as the center of this debate. The Times reports:

Privately, Mr. Jobs gathered his senior managers. While Apple had long been adept at filing patents, when it came to the new iPhone, "we're going to patent it all," he declared, according to a former executive who, like other former employees, requested anonymity because of confidentiality agreements.

"His attitude was that if someone at Apple can dream it up, then we should apply for a patent, because even if we never build it, it's a defensive tool," said Nancy R. Heinen, Apple's general counsel until 2006.

As attempts to reform come up against the very real forces of governmental inertia, it doesn’t look like the patent wars are slowing down any time soon. There has got to be a way to protect technological innovation without stymieing it or handing the keys over to the companies with the most resources, but until then, it’s an uphill battle.